IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-0005
[2020] NZHC 726
BETWEEN HIRA JENSEN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 March 2020 Appearances:
S J Galler for Appellant J Kang for Respondent
Judgment:
8 April 2020
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 8 April 2020 at 12.15 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors: Meredith Connell, Crown Solicitor, Auckland Counsel: S J Galler, Auckland
JENSEN v POLICE [2020] NZHC 726
[1] The appellant, Mr Jensen, appeals against a sentence of two years, nine months’ imprisonment imposed by Judge Collins on 19 November 2019.1
[2] I must allow the appeal if satisfied there is an error in the sentence imposed and a different sentence should be imposed.2 I must dismiss the appeal in any other case. The Court does not simply substitute its own view for that of the original sentencing Judge.3 Rather, it must be shown the sentence is manifestly excessive or wrong in principle.4 The focus is on the end sentence, rather than the process by which the sentence was reached.5
Background
[3] Mr Jensen was for sentence on the following charges, committed on the dates shown:
(a)burglary — 5 July 2016;6
(b)robbery — 5 July 2016;7
(c)failing to answer police bail — 29 August 2016;8
(d)common assault (x 2) — 10 December 2016;9
(e)wilful damage — 10 December 2016;10
(f)failing to answer District Court bail (x 4) — June 2016, December 2016 (x 2), and January 2017;11
1 Police v Jensen [2019] NZDC 23914.
2 Criminal Procedure Act 2011, s 250(2).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
4 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R, above n 3, at [30]–[35].
5 Tutakangahau v R, above n 3, at [36].
6 Crimes Act 1961, s 231. The maximum penalty is 10 years’ imprisonment.
7 Section 234. The maximum penalty is 10 years’ imprisonment.
8 Bail Act 2000, s 38. The maximum penalty is 1 years’ imprisonment or a fine of $2,000.
9 Crimes Act, s 196. The maximum penalty is 1 years’ imprisonment,
10 Summary Offences Act 1981, s 11. The maximum penalty is 3 months’ imprisonment or a fine of
$2,000.
11 Bail Act, s 38. The maximum penalty is 1 years’ imprisonment or a fine of $2,000.
(g)resisting police — 24 February 2017;12 and
(h)escaping lawful custody — 24 February 2017.13
[4] The burglary was of a residential address, with no forced entry. The sole (female) occupant was not home at the time, and Mr Jensen gained entry through an unlocked door or window. Once inside, Mr Jensen stole a television and an “igloo” box from the woman’s bedroom (never recovered), and then spat on the wall. It was this which ultimately led to Mr Jensen’s identification.
[5] Mr Jensen then committed the robbery…
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- Jensen v Police [2020] NZHC 726
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- [2020] NZHC 726
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CaseChat Overview and Summary
The Court accepts the Judge's uplift for the burglary was too high and should have been 14 or 15 months' imprisonment. Having regard to the gravity of the offending as a whole, a starting point of no more than three years' imprisonment would have been proportionate. The Court accepts Jensen was eligible for a discount for youth, given his age at the time of the offending. Much of the offending was impulsive and spontaneous. An offender's prior history, whether in the Youth Court or District Court, does not preclude a discount and, in fact, is irrelevant. The Court accepts Jensen has the potential to refrain from offending and therefore to rehabilitate. The impact on Jensen of a lengthy sentence of imprisonment would be disproportionately severe, even if warranted for an adult offender. The Court is satisfied a discount for youth ought to have been given. The Court accepts there was no error on the part of the Judge in relation to the discount for Jensen's guilty pleas. A discount of 15 per cent was the most Jensen could reasonably expect in those circumstances.
The Court allows the appeal. The sentence imposed on the charge of robbery committed on 5 July 2016 is varied from two years, nine months' imprisonment to two years, three months' imprisonment. All other sentences remain unchanged.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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